BIA Holds Pending Application for H-1B Extension Does Not Confer Lawful Status

by Buchanan Ingersoll & Rooney PC

On November 7, 2013, the Board of Immigration Appeals (BIA), issued an unpublished decision sustaining the denial of an adjustment application and holding that the respondent had failed to maintain lawful status during the time his application to extend his H-1B status was pending.

In Matter of Ivica Trupcevic, the foreign national initially entered the U.S. as a student on an F-1 visa and changed his status to that of an H-1B temporary worker.  Prior to the expiration of his H-1B status, the foreign national filed an application for an extension of his H-1B status, which was pending for seven months after the initial H-1B expiration and was denied.   Prior to the decision denying the application for extension, his employer filed an application for a Labor Certification (PERM), which was approved two months after the H-1B extension denial.  Two months after the PERM approval, the employer filed an Immigrant Petition and Adjustment of Status with the United States Citizenship and Immigration Service (USCIS).  USCIS denied the adjustment of status for failure to maintain lawful status for more than 180 days, and placed the foreign national in removal proceedings, where he renewed his application for adjustment of status.  The Immigration Judge agreed with the USCIS and denied the application on the same grounds.   

Adjustment of Status describes one manner in which certain foreign nationals who are already present in the United States may apply for permanent residence (“green card”).  Typically, in order to be eligible for adjustment of status, an individual must demonstrate that he or she: (1) entered the U.S. legally, and (2) never violated immigration laws, for example by failing to maintain lawful status or working without authorization.  However, there are certain exceptions to this rule.  For example, pursuant to Section 245(k) of the Immigration and Nationality Act, employment-based applications for permanent residence include an exception for individuals who failed to maintain status or worked without authorization for up to 180 days. 

In Matter of Ivica Trupcevic, the USCIS and Immigration Judge reasoned that unlawful status began at the time the initial H-1B status expired, and the time during which the application for an extension was pending did not confer lawful status to the foreign national.  The foreign national argued that the seven months during which his application for an extension was pending should not be counted as unlawful presence, and therefore he had not incurred more than 180 days of unlawful status.  The BIA disagreed, finding that if a timely application for an extension is denied, the applicant begins to accumulate time in unlawful status upon expiration of the previously-granted status.  Therefore, the seven months must be counted as unlawful status and the applicant had failed to maintain status for more than 180 days.

An unpublished decision is not binding on any Court or the USCIS, although it may serve as persuasive authority when applying for certain benefits from the USCIS or relief from removal in Immigration Court.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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